SZOXQ v Minister for Immigration & Anor [2011] FMCA 219 (6 April 2011)

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SZOXQ v Minister for Immigration & Anor [2011] FMCA 219 (6 April 2011)

Last Updated: 6 April 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOXQ v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 219

MIGRATION – Review of a decision of Refugee Review Tribunal – whether the Tribunal asked itself the wrong questions – whether the Tribunal ignored relevant material – whether the Tribunal did not afford procedural fairness – whether the Tribunal was biased – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36, 65, 414, 476

SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1; (1999) 73 ALJR 584 Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs) and Another; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437 Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1; (2004) 205 ALR 487; (2004) 78 ALJR 678 NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12; (2004) 78 ALJR 922 Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507; (2001) 178 ALR 421; (2001) 75 ALJR 679

Applicant:

SZOXQ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 31 of 2011

Judgment of:

Nicholls FM

Hearing date:

1 April 2011

Date of Last Submission:

1 April 2011

Delivered at:

Sydney

Delivered on:

6 April 2011

REPRESENTATION

The Applicant:

In person

Appearing for the Respondents:

Mr M Alderton

Solicitors for the Respondents:

Sparke Helmore

ORDERS

(1) The application made on 11 January 2011 is dismissed.
(2) The applicant pay the first respondent’s costs set in the amount of $4,200.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 31 of 2011

SZOXQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 11 January 2011 under s.476 the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 16 December 2010, which affirmed the decision of the delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

2. The applicant is a national of the People’s Republic of China (“China”), who arrived in Australia on 16 December 2007 on a student guardian (subclass 580) visa in order to care for his eldest son.

Claims to protection

3. The applicant’s claims to protection are set out in a statement (Court Book – “CB” – CB 27) attached to his protection visa application (CB 1 to CB 32).
4. The applicant claimed to be a supporter of the Communist Party in China. When the applicant was in China he worked as a marine farmer.
5. The applicant’s eldest son returned to China in January 2010 and on his return to Australia on 21 March 2010 the applicant became aware that the Chinese officials and military intended to demolish properties in the applicant’s hometown to build a new military base. This included the applicant’s property.
6. The applicant wrote to the provincial government protesting against the demolition. However, on 20 April 2010 the applicant’s house and operating workshop were demolished. The applicant’s wife took pictures of the demolition and was consequently beaten, arrested and detained for ten days, as it was perceived that she was trying to assist the applicant’s asylum application.
7. The applicant claimed that during his wife’s detention she was warned by the police that if the applicant were to write complaints again, then both she and the applicant would be punished and detained. Further, if the applicant were to return to China, then he would be interrogated and detained.

The Delegate

8. The delegate held a number of concerns about the applicant’s reliability due to the “numerous vague and unsubstantiated responses” to the delegate’s questions about the making, and the substance of the protection visa application. Specifically, the timing of lodgement, the lack of assistance by a migration agent, and his and his son’s residential addresses (CB 50).
9. The delegate had difficulty in accepting the veracity of the claim that the applicant’s home and workshop were demolished (CB 51.5). However the delegate’s decision to refuse the application turned on the fact that the applicant was not of any adverse interest to the Chinese authorities (CB 51.8).

The Tribunal

10. The applicant applied for review by the Tribunal on 14 September 2010 (CB 54 to CB 57). He was invited to and ultimately did attend a hearing before the Tribunal on 26 October 2010 (CB 60 to CB 66). The Tribunal’s account of what occurred at the hearing is set out in its decision record at [29] to [53] (CB 83 to CB 90).
11. On 12 November 2010 the Tribunal wrote to the applicant inviting him to respond or provide comments to its concerns about information he had provided in his student guardian visa application and orally at the Tribunal hearing. Specifically, the Tribunal held concerns over the residential addresses of the applicant and his son and how long they resided at each address, the applicant’s occupation before arriving in Australia, the reasons why the applicant applied for asylum, and when the applicant was on notice that his house may be demolished by Chinese authorities (CB 72 to CB 74).
12. The applicant responded to the Tribunal’s request in writing on 13 December 2010. In relation to the concern of residential addresses, the applicant said that his son did not provide his new residential address to the Department of Immigration when he ceased living with the applicant. The applicant stated that his son had an “education agent” who provided and received correspondence from the Department of Immigration (CB 75.2). The applicant also provided additional details about his occupation and the demolition of his property (CB 75.5).
13. The Tribunal had difficulty in accepting the applicant’s claims due to the inconsistent evidence about his occupation ([64] at CB 94.7) and the demolition of his property, which led it to the finding that the applicant was not a witness of truth ([70] at CB 96.5).
14. The Tribunal was of the view that as the demolition of the applicant’s property was the instigating factor for him to seek asylum, then he would know with some certainty: “... when he learned about the proposed demolition and confiscation of his property, and... about the whereabouts of his wife on the day of the alleged demolition.” ([65] at CB 94.8.). However, on a number of occasions the applicant tried to change his evidence when he realised his account of events was inconsistent ([65] at CB 94.9, [67] at CB 95.5 and [70] at CB 96.5).
15. Consequently, the Tribunal did not believe that the applicant was of any adverse interest to the Chinese authorities (CB 93.6) and therefore affirmed the delegate’s decision ([72] at CB 96.8).

Application to the Court

16. The applicant has put one bare, unparticularised ground before the Court in his application:
    • “Jurisdictional errors in my case.”
17. On 9 January 2011 the applicant filed an accompanying affidavit with his application which attached, at “C”, a “letter” addressed to the Court. It stated relevantly that the Tribunal asked itself the wrong question and ignored relevant material
18. On 16 March 2011 the applicant filed an affidavit made on 13 March 2011 attaching another “letter” to the Court which provided a further explanation of what jurisdictional errors the applicant believed the Tribunal fell into. The applicant stated:
    • “...
    • Tribunal gave me an unfair hearing and exhibited bias in my case. The Tribunal made significant mistakes in its final conclusion.
    • The procedure followed by the Tribunal was unfair to me. The Tribunal Member was bias against me. There is one error in the decision, which namely at paragraph 52 of the Court Book (CB). The Tribunal was concerning my history of where I and my son lived in Sydney relying on the records in the Department of Immigration. But this assumes the department’s records were accurate. It also assumes that my son has kept the Department properly informed as to his place of residence from time to time. In fact, my son did not inform the Department about his place of residence from time to time.
    • However this causes the error conclusion relied on the error record of the Department. Such conclusion indicates bias on the Tribunal. Therefore the decision of the Tribunal appeared to question my credibility by relying on the Department records of the addresses of my son was unfair to me.
    • ...”

Before the Court

19. The applicant appeared in person. He was assisted by an interpreter in the Mandarin language. Mr M Alderton appeared for the first respondent. Written submissions were filed by the first respondent.
20. Before the Court the applicant repeated the complaints set out in his two “letters”. In essence, the core of the applicant’s complaint is that he was not treated fairly by the Tribunal.
21. He relied on two matters in support of this complaint. The first was that the Tribunal should not have relied on the matter of his and his son’s addresses while they were in Australia. The second was that the Tribunal did not accept his explanation as to why, in his “Hukou” (Chinese household registration), he had submitted his occupation as “cook” instead of “marine farmer”.
22. The sole ground of the application asserts jurisdictional error on the part of the Tribunal. No particulars are provided. But even if the complaints put before the Court in the “letters” and orally are said to particularise this ground, the ground does not succeed for the reasons given below.

Consideration

23. From the “letters” annexed to the applicant’s two affidavits, it may be said that the applicant complains:
    1. The Tribunal asked itself the wrong questions.
    2. It ignored relevant material.
    3. The Tribunal did not afford procedural fairness.
    4. The Tribunal was biased.
24. The applicant complains that the Tribunal asked the wrong questions and was wrong to draw an adverse conclusion about the applicant’s credibility.
25. When regard is had to the two matters put in support, it is clear that the applicant’s complaint is not some assertion that the Tribunal asked itself the wrong question in terms of the relevant test or issue, but that literally at the hearing it should not have asked him “many questions” about his and his son’s residential addresses, nor why he recorded his occupation as “cook” in his Hukou.
26. It is, as the Minister submits, for the applicant to put his case, not for the Tribunal to ask what he regards as the “right questions” at the hearing.
27. The relevant statutory scheme (s.65 and s.36(2) of the Act) require the Tribunal to reach a requisite level of satisfaction that, in effect, the applicant meets the definition of “refugee” as set out in Article 1A(2) of the Refugees Convention (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225).
28. In conducting the review of the delegate’s decision, which the Tribunal is statutorily charged to conduct flowing from s.414 of the Act, the Tribunal has some liberty to ask the applicant those questions relevant and necessary such as to be able, or not able, to reach the requisite level of satisfaction.
29. In this light, and within this framework, the direction taken at the hearing in the questioning of the applicant is for the Tribunal to determine in the discharge of its function as an “inquisitorial” Tribunal (Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1; (1999) 73 ALJR 584 at [194] per Gummow and Hayne JJ, Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs) and Another; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437 at [57], [81] per Gummow and Heydon JJ. See also Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1; (2004) 205 ALR 487; (2004) 78 ALJR 678 at [97] per Kirby J).
30. The applicant has not put any evidence before the Court to challenge the Tribunal’s account of what occurred at the hearing. In these circumstances it is not open to this Court to infer or speculate as to what may otherwise have happened (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241). This account reveals that while the applicant gave some evidence about his residential address in Australia (see [30] at CB 83), it cannot be said on this account that the Tribunal asked too “many questions” about this.
31. Following the hearing, the Tribunal did write to the applicant drawing attention to certain information about his and his son’s different residential addresses in Australia (CB 72). The Tribunal did put him on notice that the inconsistencies in the information he provided may, in part, lead it to form an adverse view of his credibility.
32. However, whether it was as a result of the applicant’s response (CB 75) or otherwise, any plain reading of the Tribunal’s decision reveals this matter was not a part of the reason for finding adversely to the applicant’s credit (see [59] at CB 93 to [71] at CB 96).
33. In all these circumstances, therefore, the applicant’s complaint that the Tribunal asked him too “many questions” at the hearing about his residential addresses, and that this reveals jurisdictional error, is not made out either at a factual level or otherwise.
34. Even if it had asked too “many questions”, on its own this would not reveal jurisdictional error. In any event, the applicant’s complaint can properly be understood that the Tribunal relied on this matter to find adversely to him. It did not.
35. As to the second matter or “particular” (the recording of the applicant’s occupation as “cook” in his Hukou), the Tribunal’s account reveals it did ask questions about this at the hearing ([49] at CB 87). Plainly this was a part of the Tribunal’s adverse credibility finding ([63] at CB 94).
36. Given that the applicant had told the Tribunal his occupation was a marine farmer, a matter which was at the heart of his factual account of events in China, it was perfectly appropriate for the Tribunal to explore documentary evidence which indicated that the applicant was occupied at the relevant times, not as a marine farmer, but as a cook.
37. The Tribunal did not accept the applicant’s explanation for this discrepancy. It found ultimately that, at the relevant time, his occupation was cook, not marine farmer. It concluded that his inconsistent evidence about his occupation undermined his reliability ([62] at CB 93 to [64] at CB 94).
38. The Tribunal’s findings in this regard were open to it on what was before it. Ultimately, the Tribunal’s finding that the applicant was not a credible witness was a question for it as the relevant finder of fact (Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405).
39. As the Minister submits, the Tribunal does not have to accept the applicant’s claims at face value, the weight to be accorded to the evidence, what the Tribunal made of the evidence, was for it to decide (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568). It is of course for the Tribunal to assess the facts as found and to make findings as to the genuineness of the claims made (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12; (2004) 78 ALJR 922).
40. In all, no error is revealed.
41. The applicant’s second complaint in his “letter” is that the Tribunal ignored information about his property being confiscated and demolished, and that his wife was detained and attacked by the police.
42. This is simply misconceived. The Tribunal did not ignore these claims (see [61] at CB 93 and [65] at CB 94 to [67] at CB 95), it simply did not accept them. This also was reasonably open to the Tribunal, and it gave reasons for this. No error is revealed in these circumstances.
43. In his second “letter” the applicant complains that the Tribunal “gave” him an “unfair hearing”, and exhibited bias. This is explained by the assertion that the Tribunal adopted an “unfair procedure”.
44. This is all said to emanate from an “error” in the Immigration Department’s records in relation to his and his son’s residential addresses in Australia.
45. I have already refereed to this matter above. The Tribunal’s questioning of the applicant at the hearing about this does not reveal any procedural unfairness in the conduct of the hearing. The applicant was invited to the hearing and gave his evidence. No procedural unfairness is evident in this regard.
46. Separately, on the question of the residential address, it appears that an inference may be drawn that the Tribunal was persuaded by the applicant’s explanation for the inconsistencies as further explained by him in writing. The matter of the residential addresses was not an element in its adverse credibility finding.
47. Procedural fairness is of course about the process, not the outcome. The Tribunal’s questioning of the applicant on this topic at the hearing does not reveal that he was denied a fair hearing, or that the Tribunal was biased.
48. Further, in relation to the latter, that the Tribunal was biased is a serious charge that requires it be clearly made and distinctly proven. The fact is that the Tribunal did bring an open mind to the proceedings (Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507; (2001) 178 ALR 421; (2001) 75 ALJR 679 at [69], [71] to [72] per Gleeson CJ and Gummow J, and [127] per Kirby J).
49. On what is before the Court, it cannot be said that there is any basis for the charge of bias against the Tribunal, let alone that it can be made out.

Conclusion

50. For the applicant to succeed, the Court would need to discern, at the very least, jurisdictional error in the Tribunal’s decision. No such error is apparent, either as asserted by the applicant or otherwise. The application is dismissed.

I certify that the preceding 50Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !fiftyfifty (50) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:

Date: 6 April 2011